People v. Murphy

2019 IL App (4th) 170646

145 N.E.3d 56

437 Ill.Dec. 758

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Elliott T. MURPHY, Defendant-Appellant.

No. 4-17-0646

Appellate Court of Illinois, Fourth District.

August 27, 2019

James E. Chadd, Patricia Mysza, and Caroline E. Bourland, of State Appellate Defender's Office, of Chicago, for appellant.

Jay Scott, State's Attorney, of Decatur (Patrick Delfino, David J. Robinson, and David E. Mannchen, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE KNECHT delivered the judgment of the court, with opinion.

¶ 1 In April 2017, a jury found defendant, Elliott T. Murphy, guilty of the first degree murder of Jerry Newingham ( 720 ILCS 5/9-1(a)(1) (West 2008)) and the attempted first degree murder of Kevin Wilson (id. §§ 8-4(a), 9-1(a)(1) ). Defendant, who was 16 years old at the time of the August 2009 offenses, was sentenced to consecutive terms of prison, totaling 55 years. Defendant appeals his convictions and sentence.

¶ 2 On appeal, defendant argues (1) the State committed plain error by relying on the prior inconsistent testimony given by Branden White as substantive evidence without sending the transcripts of that testimony to the jury to prove White had so testified, (2) trial counsel was ineffective for failing to present evidence in the second trial showing defendant was absent from school on and around the date a key State witness, Malcolm Spence, claimed defendant made an inculpatory statement at school, and (3) his 55-year sentence for offenses he committed when he was only 16 years old was a de facto life sentence imposed in violation of federal and state authority. We agree with defendant's sentencing argument and remand.

¶ 3 I. BACKGROUND

¶ 4 On August 24, 2009, Jerry Newingham and Kevin Wilson encountered a group of teenage males that, according to the State's evidence, included defendant, defendant's 14-year-old brother Deonta Johnson, Dedrick Rhone, Fredrick Rhone, Malcolm Spence, and Branden White. Newingham, age 61, was riding his bike when he was attacked. After he fell to the ground, Newingham was stomped to death by members of the group. The assailants then attacked Wilson, who was lying near a park pavilion. Emergency personnel found Wilson bloody, swollen, and unable to walk or answer questions. Wilson survived the attack.

¶ 5 The State prosecuted the aforementioned juveniles as adults for the first degree murder of Newingham, the attempted murder of Wilson, and other charges. White entered a negotiated plea to first degree murder. In exchange for his plea and truthful testimony, White was sentenced to 20 years in the Illinois Department of Corrections (DOC). Spence pleaded guilty to mob action and obstruction of justice and agreed to testify truthfully. The charges of murder and attempted murder against Spence were dismissed. Fredrick and Dedrick entered open guilty pleas. Fredrick pleaded guilty to murder and was sentenced to 20 years. Dedrick pleaded guilty to attempted murder of Wilson and received 15 years.

¶ 6 Defendant and Johnson elected to be tried by a jury on the State's charges. In 2011, defendant and Johnson were tried jointly and found guilty of murder (Newingham) and attempted murder (Wilson). At this trial, Spence testified regarding a conversation he had with defendant and Johnson:

"Q. I'm going to ask you some questions about a conversation that occurred about two days after this. Do you understand that? About two days after the attack?

A. Yes, ma'am.

Q. Did you have a conversation with [defendant]?

A. Yes, ma'am.

Q. And where were you when you had that conversation with him?

A. At school

Q. And what school did you go to at that time?

A. MacArthur High School.

Q. Did [defendant] also attend MacArthur High School?

A. Yes, ma'am.

Q. Is MacArthur High School located pretty much right next to Garfield Park?

A. No.

Q. When you spoke to [defendant], was anybody else present?

A. Yeah.

Q. Who else was there?

A. His brother and a couple other people.

Q. When you say, ‘his brother,’ who[m] are you referring to?

A. Deonta.

Q. Okay, and Deonta Johnson?

A. Yes, ma'am.

Q. What did [defendant] say to you during that conversation?

A. He told me what happened to the dude that got jumped on at Monroe.

Q. And when you say that he told you what happened to the dude that was jumped on at Monroe, what did he say[ ] specifically happened?

A. Said they was just walking and he was riding his bike and he told his brother to go swing on him.

* * *

Q. And what did he say next?

A. He said his brother swung on him and they all just got to jumping on him.

* * *

Q. Did you also have a conversation with Deonta Johnson?

A. Yes, ma'am.

Q. And was it the same time you talked to [defendant] or was it a different conversation?

A. Same time.

Q. Was [defendant] present when you talked to Deonta Johnson?

A. Yes, ma'am.

Q. And was that also at MacArthur High School?

A. Yes, ma'am.

Q. And what did Deonta Johnson say to you?

A. He told me he didn't know if he could do it. So, he just said he did it.

* * *

Q. What was he talking about?

A. Knocking the man off his bike."

¶ 7 On cross-examination, defense counsel questioned Spence regarding the alleged conversation:

"Q. You stated that a couple of days afterward, you had a conversation at school that involved [defendant] and Mr. Johnson and some other people?

A. Yes, sir.

Q. At MacArthur?

A. Yes, sir.

Q. And at like lunch time or something?

A. Yes, sir."

¶ 8 To impeach Spence's testimony, defense counsel introduced defendant's attendance records for the dates of August 24 through September 3, 2009. The records are not included on appeal. Both defendant and the State addressed the records during closing argument. Defense counsel argued the school records demonstrate Spence's conversation with defendant did not occur:

"Spence tells us about this mythical conversation that he had with both of the defendants two days after the attack, and I say mythical because it occurred, according to him, at MacArthur School in the cafeteria around lunch time. He said that that's a school that Mr. Johnson didn't attend. He wasn't in MacArthur, and that's a school that Mr. Murphy, and you'll see this from the exhibits that we stipulated to at the end of the trial, was absent on both [sic ] the 26th, 27th, and 28th. So, Mr. Spence testified that he had this conversation where the defendants made statements on an occasion when it couldn't have happened. I would submit that Mr. Spence's credibility is zero."

In contrast, the State, in closing, argued the school records did not undermine Spence's testimony, but showed defendant had been suspended from school on the date of the offenses:

"There were also school records, as the defendant's exhibit in this case, that you will see back in the jury room and it shows that [defendant] was not in school in the days that followed this offense when Malcolm Spence spoke to him where he talked about what he had done to the victim on Sawyer Street. Well, please note, when you take that exhibit back in the jury room, that the defendant * * * wasn't in school on August [24, 2009,] either. He had a school suspension. He was not in school that day, and that's the day that this murder occurred and yet he is on the property of MacArthur High School with his brother who goes to the middle school right when that school lets out because they're there from the very beginning when Brian Armour and Dedrick Rhone fight. So, the fact that he's not in school does not mean he couldn't have been on the premises. We know that he was on August [24, 2009]."

¶ 9 The jury found defendant guilty of both first degree murder and attempted murder. Defendant appealed his convictions. On appeal, this court concluded defendant was entitled to summary reversal and a new trial due to "trial counsel's per se conflict of interest in contemporaneously representing defendant and [a witness]." People v. Murphy , 2013 IL App (4th) 111128, ¶ 79, 371 Ill.Dec. 627, 990 N.E.2d 815.

¶ 10 In April 2017, on remand, defendant's second jury trial was held. Defendant's trial was lengthy and involved a number of witnesses. For this appeal, we will summarize the testimony of those witnesses necessary to resolve the issues raised by defendant.

¶ 11 At retrial, Spence was called upon by the State to testify regarding the attack on Wilson and his conversation with defendant. Spence agreed the conversation occurred "a couple—two days after that happened in Garfield Park." Spence testified he was at school and "[e]verybody was up there." According to Spence, defendant said, "they had jumped on somebody before they came up to the park," and defendant said he told his younger brother Johnson to punch him. Defendant also said he stomped on the man's head.

¶ 12 On cross-examination, defense counsel asked questions emphasizing Spence told the police the "story that you told today" only after having been charged with murder and attempted murder. Defense counsel further emphasized the charges against Spence had been dropped. Defense counsel did not seek to admit school records.

¶ 13 Also during retrial, the State called Branden White to testify. White testified in defendant's 2011 trial. White acknowledged he, six years earlier, pleaded guilty to the first degree murder of Newingham. As part of his plea, White was sentenced to 20 years' imprisonment in exchange for his truthful testimony. The State asked White if he testified at a hearing on this matter in August 2011. White responded he did not remember. White also did not remember attending MacArthur High school in Decatur on August 24, 2009. White knew defendant and refused to describe an item defendant was wearing. White, however, identified defendant in a photo as formerly "[m]y main man." The State asked White if he gave testimony at his sentencing hearing on April 4, 2011. Defendant stated he did not remember. The State referred to People's Exhibit No. 25 as a transcript of that proceeding. The State then questioned White as...